Supreme Court Furor

Monday, June 27, 2005

With the whispers of Rhenquist or possibly O'Connor departing the Court in short order, the moment we've all been waiting for is drawing nearer. Has it really been about 150 years since we went this long without a change to the court? It's a moment for which millions of dollars have been raised and will be spent. But as we wait for the dust storm to settle, the Court has offered a subject for us to sink our teeth into as an appetizer. Eminent domain.

Yeah, I know, not the most engaging of topics. It's not war. It's not abortion. But the court missed an important one here in my opinion and paves the way for a really bad model of Eminent Domain. The case is Kelo v. City of New London.

The facts go something like this. State and local officials targetted a 90 acre plat of property in New London, Connecticut, known as Fort Trumball for economic revitalization. The area included about 115 residences. The city adopted a development plan calling for the creation of 7 parcels. Parcel 1 was designated for a hotel. Parcel 2 for about 70 new upscale homes. Parcel 3 called for 90,000 sqf of R&D space in an area adjacent to a proposed Pfizer development. Parcel 4 was dedicated to support of an adjacent state park and a marina. Parcels 5-7 were allocated for a variety of retail spaces, parking and other commercial uses. The plan was to be executed by a private development firm, the New London Development Corporation.

The pertinent portion of the Fifth Ammendment says "nor shall private property be taken for public use, without just compensation."

The court granted certiorari for the specific purpose of determining "whether a city's decision to take property for the purpose of economic development satisfies the 'public use' requirement of the Fifth Ammendment."

In legal terms, such an exercise of eminent domain is referred to as a taking. The purpose of the 5th Ammendment was to proscribe the use of this power, so that the government could not take property from party A, except where the taking would generate a justification of use by the general public. The 5th Ammendement clearly permits the government to take under the specified conditions. Case law on the subject has permitted taking from private party A in favor of private party B, so long as the 'public use' requirement is met. There are elements of the development plan which might rise to the level of public use, specifically the planned uses for parcel 4. Parcel 4 was actually described by the court in 2 parts. 4A pertains to a 2.4 acre plot dedicated to support of the adjacent state park. 4B pertains to the marina. These 2 small pieces out of a 90 acre piece of property in which 115 residences house property owners and their families.

The case was decided on a vote of 5-4. The majority opinion (penned by Stevens and joined by Kennedy, Souter, Ginsberg & Breyer) cited a series of cases in which the Court had previously enlarged the concept of 'general public use' to a broader definition of 'public benefit'. It then, somewhat oddly, urged an essentially "states rights" defense of this decision that the state and local government know best the needs of their constituents and can well determine which property uses will generate public benefits. But this is a strange sort of de facto justification. The public benefits if the economic development plan works? So, does that mean that any successful economic development plan justifies the taking that fueled it? Does it also mean that every failed economic development plan was unjustified? The court actually seems to permit either, so long as the government's heart is in the right place.

George Will wrote persuasively on the Court's decison last Friday. He recognized an important and subtle reality. While a taking by the government from private party A in favor of private party B does not appear to directly benefit the government, it is also not a disinterested party in these cases. Hence, trusting the government to deal fairly in such matters would be naive to the extreme. He observed that "during oral arguments in February, Justice Antonin Scalia distilled the essence of New London's brazen claim: 'You can take from A and give to B if B pays more taxes?' " The court's decision combined with the government's own tax-maximizing self-interest constitutes both the spark and fuel necessary to start a wildfire, whether actually intentioned or mere coincidence.

Justice O'Connor wrote the dissent in which Rhenquist, Scalia & Thomas joined. She drew her dissent to a conclusion writing:

"Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. 'That alone is a just government,' wrote James Madison, 'which impartially secures to every man , whatever is his own.'"

The impact of this decision causes the names affixed to the votes seem counter-intuitive. I'd expect the Justices in this majority to be champions of the individual, especially the underprivileged. I guess it's another question of trust. The majority trusts the government to apply its takings with less interference than I do. And the worst part of this decision is that replacing O'Connor or Rhenquist on the court, as all the discussion has recently turned, will have no impact whatever on this decision in the future.

The Pentagon's New Map - A Coherent & Thorough Vision of America's Global Security Role

Wednesday, June 22, 2005

A number of months ago, I came across the author of this book delivering a detailed and complex presentation on CSPAN. I only caught snippets, but was deeply impressed with the bits I saw. A few weeks later, I located and procured a copy of his book. I began reading The Pentagon's New Map with great interest, but as is often the case when I start new books, I got distracted before making much progress. However, in the past couple of weeks, I've returned to the book and have now completed it. I'm glad I did. I found it so compelling that I knew well before I actually completed it, that it would be the subject of my next post. In my opinion this is essential reading for anyone engaging in thoughtful discussion of Iraq, the war on Terrorism, the role of the US military in the world, etc.

PNM in: Hardcover
PNM in: Paperback

The author is Thomas P.M. Barnett. I'll defer to Mr. Barnett to give you his more complete particulars within the context of PNM. But his background is as a military analyst, with expertice in the former Soviet Union and China. PNM is significant in it's comprehensive contextual discussion of 9/11 and the war on terror. The essential context Barnett richly provides is his observation of end of the cold-war era, and Barnett is exceptionally qualified to provide it. While this material was engaging on its own merits, what I found truly epic about the work is its coherent expression of a robust strategic vision I believe the War on Terror and the War in Iraq has lacked.

To say that these initiatives have been defective for lack of vision is not to say the administration does not possess a meaningful vision. I am confident it does. The administration is not so irresponsible as to come this far down the tracks in Afghanistan and Iraq without such a vision. However, the administration has not effectively communicated a richer vision than a virtually perpetual jihad against global terrorism, we are left to wonder what it is. The least trusting among us are left to suppose the worst while the most trusting among us struggle to appreciate the anxiety of the less trusting. Whatever the administration's fuller vision, I am confident it would be enriched by integration with Mr. Barnett's.

Mr. Barnett's vision doesn't just satiate the hunger for a comprehensive vision. For me, it is also a morally rich vision. This is a vision which I believe not only could, but SHOULD serve as the basis for US foreign policy in the next several generations.

It's unfair to Mr. Barnett to attempt a summary of the work, but I'll do it anyway. The key concept, as the title describes, is a map of the globe. This map draws a dotted line between what Barnett describes as the core and the gap. The core are the globally integrated states. The gap are the non-integrated remainder of states. In general, the gap tends to occupy a geography visually resembling an inner-tube circling the globe's central latitudes. International connectedness is the discrimnating criteria for inclusion in the Core. Care nations also tend to economically better of, as a function of the very connectedness that defines them as members of the Core. Econ 101, or basic International Economics reveals this as a fairly obvious condition for economically open and integrated states.

Core states enjoy significantly higher levels of security, peace and stability. What provides this stability? Common rule sets and a version of mutually assured destruction that is economic in nature. Once nations and people have integrated and begun to enjoy the resultant rises in standards of living across their geographies, it's really hard to go back. Standard large-army war is so patently destructive to these economic advantages, that Core nations choose other means for resolving disputes. Not only is nuclear war out of the question for Core nations, but so is standard warfare with other Core states.

Alternatively, the Gap is characterized by isolation, disconnectedness and a "nothing-to-lose" mentality about warfare and conflict very disturbing to core nations. However, most of the gap nations are relatively economically destitute. So, for Gap nations, large-army war is also not an option. Instead, they must resort to more subversive methods. Their relative isolation also provides a safe haven for Usama types who want to operate off the Core's grid. In fact, these Usama types gain influence by re-inforceing isolationist sentiment and encouraging intolerance and hatred for the Core. In fact, they are dependent on disconnectedness and act to promote and defend that disconnectedness as long as they're around. Left unaltered, this virtually assures that the nation will continue in relative destitution.

Burnett observes that the dividends of our investment in the post-WWII and post-Cold War eras is a military without equal anywhere on the planet. He also recognizes that the core has begun to recognize a peace and security dividend which has propelled significant economic growth throught the core over approximately the last 20 years. Burnett then urges persuasively the existence of a moment of unprecedented opportunity to further extend the benefits of life in the Core to nations and peoples long victimized by repetitive regimes of repression. It is this concept of opportunity that is the essence of Barnett's vision. And it is this essence that epitomizes the resulting morality of his vision. In my opinion, there is not only an unprecedented opportunity to further US national security interests by expanding the Core and shrinking the Gap, but there is a concomitant moral obligation associated with this position of unrivaled military might we've worked so persistently to obtain.

In the context of this purposeful vision, Barnett addresses a variety of directly related topics. These include recommendations to overhaul the military to meet the evolving demands to be placed on those valuable resources, the doctrine of pre-emption, regime change, empire building, etc. None of these discussion topics come as any surprise, but the results Barnett reaches seem crisper and more certain because of the context PNM provides. Thankfully, Barnett does not limit himself to discussion of these obviously related subjects. He also takes time and pains to address key supporting subjects, such as economic policy, energy policy, immigration policy, foreign aid, etc. Again, the context PNM provides, draws proper US policy on these subjects into sharp focus and lends signficant credibility to Barnett's conclusions.

Only after finishing the book did I locate Barnett's personal site and begin tracking his blog. I haven't had the time to come up to speed entirely, but I quickly learned of Barnett's sequel work, already submitted to the publisher, Blueprint For Action, which Amazon reports will be shipping 10/20/2005. PNM was published in April, 2004, so it's certainly not out of date. Besides, a vision this epic becomes a landmark by which we mark time, rather than time taking a toll on it. However, the rapidly evolving circumstances around the War in Iraq and the greater War on Terror led me to wonder about a sequel work before I ever finished reading PNM. So, as soon as I finished, I begain the search for more Barnett materials and more current Barnett materials. I'm anxious to get my hands on a copy of Barnett's blueprint. Until then, the articles and blogs will keep me on pace with Barnett. And in the meantime, perhaps the administration can find its way toward Barnett's vision and begin pursuing a vision that is both more purposeful and more vivid or explicit.